Brown v. United States

On July
11, 2016, Petitioner Robert Brown (“Brown”) filed
a motion pursuant to 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence in light of Johnson v.
United States, 135 S.Ct. 2551 (2015). (Docket #1). In
August 2016, the Court determined that the matter should be
stayed pending resolution of several relevant appeals before
the Seventh Circuit relating to the effect of
Johnson on the petition. (Docket #4). Also at that
time, another pertinent case, Beckles v. United
States, No. 15-8544, was pending in the Supreme Court.
Beckles was decided on March 6, 2017. Beckles v.
United States, 137 S.Ct. 886 (2017). Now that
Beckles has been decided, for the reasons stated
below, the Court must lift the stay in this matter and deny
Brown's motion.

In
2012, Brown was convicted of armed bank robbery and
brandishing a firearm during a crime of violence. At
Brown's sentencing on March 15, 2012, the Court imposed
the “career offender” enhancement under the U.S.
Sentencing Guidelines, which provides that those who qualify
as “career offenders” must be given certain
offense level and criminal history category increases.
U.S.S.G. § 4B1.1(b).

A
defendant is a career offender if (1) he was at least
eighteen years old at the time he committed the instant
offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at
least two prior felony convictions for either a crime of
violence or a controlled substance offense. Id.
§ 4B1.1(a). At the time Brown was sentenced, the term
“crime of violence” as used in the Guidelines was
defined as “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year,
that-(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” Id. §
4B1.2(a) (emphasis added). The italicized portion of this
definition is known as the “residual”
clause.[1]

In
2015, the Supreme Court invalidated the residual clause of
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). Johnson, 135 S.Ct. at 2560. The ACCA
defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one
year” that “(i) has as an element the use,
attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B) (emphasis added). Notably, the emphasized
portion of this definition is identical to the analogous
clause in the career-offender Guideline, U.S.S.G. §
4B1.2(a)(2), and it is also referred to as the
“residual” clause. The Johnson Court
found that the ACCA's residual clause is
unconstitutionally vague, in violation of the Due Process
Clause of the Fifth Amendment. Johnson, 135 S.Ct. at
2560.

In
2016, Brown filed the instant motion. According to him,
because Johnson found that the ACCA's residual
clause is unconstitutionally vague, the same result should
obtain for the identically worded residual clause in the
Guidelines. See United States v. Edwards, 836 F.3d
831, 835 n.2 (7th Cir. 2016) (observing that cases analyzing
“violent felony” under the ACCA and “crime
of violence” under the Guidelines are interchangeable).
This, in turn, would mean that he no longer has enough
predicate convictions for “crimes of violence” to
warrant the career-offender enhancement, since at least one
predicate qualified as such only under the Guidelines'
residual clause. (Docket #1 at 1, 4).

However,
the Supreme Court's intervening decision in
Beckles forecloses Brown's argument.
Beckles held that the residual clause found in the
career-offender Guideline, unlike the ACCA, is not
susceptible to vagueness challenges. Beckles, 137
S.Ct. at 897. Key to the Court's analysis was the fact
that the ACCA represented a legislative pronouncement fixing
the permissible range of sentences for qualifying conduct.
Id. at 892. By contrast, the post-Booker,
advisory Guidelines “merely guide the exercise of a
court's discretion in choosing an appropriate sentence
within the statutory range.” Id. Because
judicial discretion is part and parcel of the Guidelines, the
constitutional concerns that animated the Johnson
Court-providing notice to defendants of what conduct will
subject them to enhanced penalties under the ACCA and
preventing arbitrary application of the ACCA's
standards-are not implicated by the Guidelines. Id.

The
only argument advanced in Brown's motion was that the
residual clause of the Guidelines is unconstitutionally vague
in the same fashion as the ACCA's residual clause. In
light of Beckles, this contention is wholly without
merit. The Court must, therefore, deny Brown's motion and
dismiss this action.

Under
Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Brown must make a
“substantial showing of the denial of a constitutional
right” by establishing that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). Because Beckles inescapably requires
dismissal of Brown's claim, as explained above, the Court
cannot fairly conclude that reasonable jurists would debate
whether his motion should be decided differently; as a
consequence, the Court must deny a certificate of
appealability to him.

Finally,
the Court closes with some information about the actions that
Brown may take if he wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within
thirty days of the entry of judgment. See Fed. R.
App. P. 3, 4. This Court may extend this deadline if a party
timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day
deadline. See Id. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The Court cannot extend this deadline. Id.
A party is expected to closely review all applicable rules
and determine what, if any, further action is appropriate in
a case.

Accordingly,
IT IS ORDERED that the stay in this matter
be and the same is hereby LIFTED;

IT
IS FURTHER ORDERED that Petitioner's motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 (Docket #1) be and the same is hereby
DENIED;

IT
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED with prejudice; and

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;IT
IS FURTHER ORDERED that a certificate of
appealability be and ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.